The Best Defense is a Good Offense

Lazy minds equate patent rates with innovation rates and are happy to see steady increases in the number of patents issued each year. Modern scientists and innovators know better.

One of the last sources of information you run to when you are trying to design something new is the patent literature. Instead, innovators go to the scientific literature of the public domain and collaborative commons. As Linux developers know well, some of the most promising technologies have enormous churn in open source communities, as well as the patent system.

The rising number of patents [1] is concerning because it could actively slow creativity in the collaborative commons. Although the problems with software patents and trolls are well known [2], the academic literature is overflowing with examples of how patents retard technological progress in all manner of disciplines (e.g., nanotechnology [3], drugs [4], everything but drugs [5], and everything [6]).

Consider, for example, 3D printing with the RepRap (self-replicating rapid prototyper 3D printer) community [7] butting heads with the proprietary Goliaths like 3D Systems and Stratasys. Three-dimensional printing is potentially a massively disruptive technology set to unshackle innovation while slashing consumer prices by enabling distributed manufacturing in the home [8]. It is beginning to touch everyone as it is being used in a growing number of fields, including manufacturing, biomedical, design, energy, defense, and transportation industries. Already more than a third [9] of engineering jobs may require applicants to be familiar with 3D printing, so you can expect it to play a large and positive role in your life going forward – that is, if the patent trolls are kept at bay.

A patent troll is a company that attempts to enforce patent rights far beyond a patent's actual value or contribution to prior art. Patent trolls are universally loathed in the technology community for stalling innovation in expensive and lengthy lawsuits.

Already the number of patents related to 3D printing is growing at such a disturbing rate that there is some evidence it is being used as a national industrial weapon [10], as weak innovators hire lawyers to attempt to raid the public domain to exclude others from innovating. For example, what some might consider to be a patent troll is attempting to patent thermoplastics already used for 3D printing by dozens of companies and thousands of makers that have built their own 3D printers [11]. If the trolls are successful, innovation in 3D printing could be stalled for another 20 years as companies waste money on lawsuits rather than engineering and innovation.

To stop this from happening, the open source community should consider playing offense.

Obviousness

In the past, the open source community has been content to play defense. For example, the good people at the Electronic Frontier Foundation (EFF) are attempting to fight for public domain 3D printing by crowd sourcing prior art to knock down questionable patent applications before they are awarded [12]. However, there is a better way. Andrew Chin, a Professor of Law at the University of North Carolina, has demonstrated a genius method to protect DNA research [13], which can be applied to any technology.

Professor Chin wrote an algorithm to generate 11 million "obvious" nucleotide sequences. To have the sequences count as prior art, he constructed the program and tabulated the list and made it public. His algorithmic approach has already [14] proven effective at anticipating prior art against oligonucleotide composition claims filed since his publication of the list and has been cited by the patent office a number of times.

If the open source community follows Chin's lead and writes open source algorithms for identifying prior art for a technology, it thereby renders subsequent patents obvious and invalid.

For example, in 3D printing, a study just published in World Patent Information [15], provides a new approach for determining obviousness of 3D printing materials, making it far more challenging to patent 3D printing materials in the future. Although the algorithm may be useful for materials scientists to develop new 3D printing materials, its real strength for the open source community is that it makes the use of any known material or combination of materials obvious for 3D printing applications. Patents are not allowed for obvious inventions, so this method effectively kills patent trolls before they are born in the most fundamental 3D printing innovation space.

This concept of obviousness for materials in 3D printing can be difficult to grasp because of the large selection of natural and man-made materials available. To make it more clear, consider a hypothetical world with far fewer materials from which to select: Assume in this hypothetical world that only three materials are natural (n) and another three are man-made (m).

In this world, a design problem might be to make a 3D-printed candy snack and the candy designer would need to choose from: n1 = cocoa, n2 = peanuts, n3 = sugar, m1 = chocolate, m2 = peanut butter, and m3 = cotton candy. Using the algorithm, the obvious materials for 3D printing would include n1, n2, n3, m1, m2, m3, n1n2, n1m1, n1m2, and so forth. Therefore, following current patent law in this hypothetical material-constrained world, it should not be possible to patent a material for 3D printing like m1m2n3 (e.g., a chocolate and peanut butter snack coated in sugar).

Unfortunately, patents are granted all the time for such obvious "inventions." Worse yet, there is no "fair use" for patents, which means that if something is patented, you can not make it in your own home legally, even if you do not sell it or plan to sell it. If you are a teacher you may not make the patented object to use as a learning aid in class. You may not make the patented invention to do research on it or study it. You may not use the patented ideas for 20 years unless you negotiate a license agreement with the owner. This is the sad truth and obviously puts a serious damper on the potential for mass-distributed manufacturing with 3D printing.

Even if the concept is pretty obvious, the current patent system often fails, and there is a good chance the patent will be issued. To stop "obvious to you and me" ideas from being patented, someone must go through the effort of placing the concept in the public domain so that a time-date-stamped document is put on the web for the patent office to cite. If you want to use your 3D printer to dip a chocolate bar in peanut butter and then sprinkle some sugar on it, you should post that idea in the public domain to prevent someone else from patenting it.

Ironically enough, in 2011 General Mills submitted a patent application for non-3D-printed versions of a chocolate and peanut butter snack coated in sugar, as shown in claim 15 of US patent US 20110020502 A1. If this seems obvious to you, you are not the only one, and a notice of appeal has been filed according to the USPTO PAIR database. However, filing appeals is playing defense. It is much better for the open source community to outline huge swaths of technology using generic and broad "obvious algorithms" that will prevent patenting in the first place.

To return to 3D printing for a moment, recyclebots [16], which are plastic extruders that fabricate 3D printing filament from recycled or virgin materials, already have been developed, open sourced, and commercialized by various companies with their own versions. With the combination of recyclebots and various syringe pump designs [17] for RepRaps and other open source 3D printers, the material selection available for consumers who produce products using 3D printers is expanding rapidly, and one can hope it will stay that way. Although the study on obvious 3D printing materials does not fix the broken US patent system, it is a start. Both companies and makers will be free to print what they want without infringing on generic, overlapping, and overly broad patents.

With two bases now covered (oligonucleotide compositions and 3D printing materials), it leaves the hard work of laying out the equivalent intellectual property minefield for would-be patent trolls for all the other technologies – both hardware and software. Get at it.

Joshua Pearce runs the Michigan Tech Open Sustainability Technology (MOST) research group, which specializes in solar photovoltaic technology – from materials science and engineering to device physics and full systems electrical engineering. He is interested in making technologies that drive sustainable development, including open source-appropriate technologies. His group's open research wiki space is on Appropedia at http://appropedia.org/Category:MOST.

The U.S. is known for its patent friendliness. But a Supreme Court decision in 2008 overturned a patent application by Bernard L. Bilski and Rand A. Warsaw for a risk mitigation process. Now Red Hat is using the so-called Bilski case in support of software non-patentability.